Director v. J. Date:, 2013 BCPC 68

Citation: Director v. J. Date: 20130318 2013 BCPC 0068 File No: 12203 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: G.W.V., born [DOB} T.G.J. , born [DOB ] T.R.J., born [DO] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: G.L.J. PARENT AND: T.V. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.A. DONEGAN Counsel for the Director: Ms. C. Oien Counsel for the Parent, G.L.J.: Ms. B. Muliner

Counsel for the Parent, T.V.: Mr. C. Kane Place of Hearing: Merritt and Kamloops , B.C.

Dates of the Hearing: January 30, 31, February 1, 2, May 28, 29, 30, June 1, and October 23, 2012 Director’s written submissions filed: December 3, 2012 T.V.’s written submissions filed: January 7, 2013 G.L.J.’s written submissions filed: January 7, 2013 Director’s Reply to submissions filed: January 18, 2013 Date of Judgment: March 18, 2103 INTRODUCTION: [ 1 ] The Director of Child, Family and Community Services (the Director) seeks a continuing custody order with respect to the following children: 1) G.W.V., born [DOB]; 2) T.G.J., born [DOB]; and 3) T.R.J., born [DOB]. [ 2 ] G.L.J., age 44, is the biological mother of all three children.

T.V., age 59, is the biological father of T.G.J. and T.R.J. and the step-father of G.W.V. [ 3 ] All parties agree that G.W.V., who is currently 17 years of age, shall remain in the care of the Director pursuant to a continuing custody order. Ms. G.L.J. and Mr. T.V. oppose the Director’s application regarding T.G.J. and T.R.J. They seek to have them returned to Ms. G.L.J.’s care, with or without supervision. FACTS: [ 4 ] The court heard ten days of evidence over the course of nearly all of 2012.

Written submissions were filed by counsel for the parties, with the Director’s final written replies filed on January 18, 2013. [ 5 ] G.W.V., T.G.J. and T.R.J. have been through a great deal in their short lives. G.W.V. has now reached an age where he has chosen his own path. He wants to maintain a relationship with his mother on his own terms and continue to live in the home of his foster parents, D.L. and B.L. G.W.V. appears to be on a good path, with plans for a productive life. All parents, including his biological father, have chosen to respect his wishes. [ 6 ] T.G.J. and T.R.J. are still young.

They have been in full time foster care for three years now. Their parents seek an opportunity to have them again placed in Ms. G.L.J.’s care, with maximum contact to Mr. T.V. They feel they have made significant strides in their individual lives and healing in order to enable them to now meet their children’s needs.

The Director seeks to have them remain in care permanently, with the hope and reasonable expectation they would remain in their current foster placement with their oldest brother - the home of D.L. and B.L. [ 7 ] In order to determine which path is best for these children, a close examination of the family’s history, evolution and current situation is required. Mr. T.V. [ 8 ] Mr. T.V. is currently 59 years old. He is an aboriginal man, born and raised in a large family in the Merritt area. Academically, he completed Grade 7, followed by three years with an occupational school curriculum.

He left school at age 14 and still struggles with reading. Mr. T.V. found work immediately as a ranch hand and has continued to work in that field for most of his life. [ 9 ] Mr. T.V. grew up in a traditional First Nations family, speaking mainly their native dialects, Thompson and Okanagan. The family spent a lot of time outdoors hunting and growing their own food. [ 10 ] Residential schools had a significant impact on Mr. T.V.’s upbringing. Both of his parents, his aunts and all of his older siblings attended residential school. Mr.

T.V.’s father saved him from experiencing its abuses first hand by refusing to send him at the age of seven. Mr. T.V. recalls evading authorities by hiding under a tarp in a wagon, while watching his older sister being taken away in a cattle truck - the last time he saw her for a significant period of time. Mr. T.V. remains close with one of his brothers, H.S., who testified at this hearing.

[ 11 ] Largely as a result of his parents’ residential school experiences, Mr. T.V. grew up in a very violent home. Extreme physical discipline was regularly inflicted upon him. Whippings stand out in his mind. [ 12 ] Violence was not only present in his home, but at church as well. When he was approximately eight or nine years old, his priest whipped him with a pointer stick when he would not pray out loud or confess his “sins”, a term that was unknown to Mr. T.V. at the time. This physically abusive priest also tried to sexually assault him. Fortunately, Mr.

T.V. was able to fight him off by knowing “how to use my fingernails”. Mr. T.V. recalls his friend was not so fortunate. [ 13 ] Mr. T.V. eventually moved out of the family home at the age of 18. A few years later, he met his first spouse, R.S. The two lived in a common-law relationship for 23 years, from 1973 until 1996. They had three children and have many grandchildren. [ 14 ] Mr. T.V. testified openly about his severe alcoholism during his early adulthood. Faced with the prospect of losing his children, he chose to attend treatment in 1985.

To his great credit, he has remained clean and sober since that time. [ 15 ] Two years after his separation from Ms. R.S., Mr. T.V. began a relationship with G.L.J. Her son, G.W.V., was three years old at the time. Ms. G.L.J. [ 16 ] Ms. G.L.J. is a 44 year old aboriginal woman. She is originally from the Lytton area, where she graduated from high school. Since then, Ms. G.L.J. has lived mainly in the Merritt area. She describes her cultural group as Thompson (Shuswap). [ 17 ] As a young girl, Ms. G.L.J. was placed into a home with her aunt. This home was not a healthy one. Ms.

G.L.J. was repeatedly abused, in every way possible - physically, mentally, emotionally, spiritually and sexually. [ 18 ] Ms. G.L.J. suffered these same devastating abuses in residential school. The impact of this abuse has been profound. [ 19 ] Ms. G.L.J. abused drugs and alcohol in her younger years. To her great credit, she achieved sobriety from her cocaine addiction in approximately 1994. She has remained clean and sober from alcohol since 1999. [ 20 ] Ms. G.L.J. remains very involved in her First Nations culture.

She engages, on a daily basis, in traditional food gathering, growing, preparation, hunting and many other cultural activities. She remains close with one of her sisters, C.S., who testified at this hearing. The Family’s Life Prior to Removal [ 21 ] T.G.J. was born on [DOB], roughly two years after Ms. G.L.J. and Mr. T.V. commenced their relationship. T.R.J. was born five years later, on [DOB]. [ 22 ] From 1998, when their relationship began, until their children were removed from their care in 2010, a number of things occurred that affected the family negatively. Mr. T.V. and Ms.

G.L.J. separated and reconciled at least six different times. Mr. T.V. used physical violence against the children, particularly G.W.V., and against Ms. G.L.J. when angered, lacking the proper tools to manage those emotions. Ms. G.L.J. began her long journey toward recovery from the abuses she suffered, recently being diagnosed with P.T.S.D. [ 23 ] The Director’s first significant involvement with the family occurred in 2004, when Mr. T.V. slapped G.W.V. across the head and lifted him off the floor by his hair. Ms. G.L.J. ran up and held the bottom of his feet to alleviate the pressure on his head.

At that time, Ms. G.L.J. was fearful of Mr. T.V. and told social workers that she wanted to start protecting her children. Services were offered to the family. [ 24 ] In August of 2004, the entire family attended and completed a six week Self-Growth, Personal Change and Healthy Family Living Program offered through Kakawis Family Development Centre. The parents also successfully completed a Parenting Skills Training Program through this same centre. [ 25 ] Ms.

G.L.J. completed a Smart Shop Program through Scw’exmx Community Health Services Society on June 16, 2005 in order to improve her provision of healthy food choices for the children. [ 26 ] The Director was again involved with the family in 2006. Mr. T.V. used physical violence against G.W.V. and was charged with assault. The parents separated and initiated family court proceedings. T.G.J. was struggling in school at this time as well. Despite the family’s turmoil, Ms. G.L.J. still took it upon herself to have T.G.J. receive a psycho-educational assessment, which assisted in developing educational plans for him.

Ms. G.L.J. also continued to ensure the children’s medical and dental needs were looked after. [ 27 ] At a family case conference on October 12, 2007, the parents agreed to joint custody of the children. They further agreed that primary residence would remain with Ms. G.L.J., Mr. T.V. would have reasonable and generous access, and that he would leave Ms. G.L.J.’s presence upon her request. [ 28 ] The assault charge did not proceed, but Mr. T.V. breached his bail order by attending the family home. He was placed on probation.

While on probation, he completed the Respectful Relationships course offered through Corrections Branch on December 7, 2007. [ 29 ] Ms. G.L.J. completed a six week relationship course as well, only a few days later, called Building Healthy Family Relationships, through the Connayt Society. [ 30 ] Ms. G.L.J. started to deal with the repercussions of her residential school abuse during this same period. She commenced what would turn out to be a five year residential school hearing process in 2006. She also started working with a counsellor out of Kelowna,

Linda Hamm. Ms. G.L.J. began working part time as well during this time, as a driver for a person with disabilities. [ 31 ] During these years of struggle, the family also engaged in many positive, healthy activities. Both parties, but particularly Ms. G.L.J., were very involved with the children. They did many activities as a family, including many traditional aboriginal activities. The family spent a lot of time outside – gathering food and berries, camping, hunting and fishing.

The parents emphasized teaching their children by engaging in story telling, exploring local and traditional areas, learning survival skills and gardening to name a few. The younger children developed a close bond with both parents, but T.G.J. developed a particularly strong attachment to his father. The two share many outdoor interests and passions. [ 32 ] Social worker Tim Demerchant met with Ms. G.L.J. on January 21, 2008. At this time she was on her own, struggling with children not listening to her and trying to meet their various educational needs. She needed some respite. Ms.

G.L.J. agreed to a Support Services Agreement with some respite available a few days later. [ 33 ] The parents’ dealings with Mr. Demerchant and other social workers did not evolve well. Lack of communication, miscommunication and eventual mistrust characterized the relationship. Unfortunately Mr. Demerchant reminded both parents of past abusers – the way he looked, the tone of his voice. They found they were always on guard with him, always defensive and had great difficulty communicating with him. Once this was uncovered and disclosed, Mr.

Demerchant was replaced by another social worker. [ 34 ] By March of 2008, Ms. G.L.J. did not yet have the respite services established to assist her. Mr. T.V. was working out of town. Two events occurred that resulted in the Director’s intervention. [ 35 ] The first of these occurred in March. One day, Ms. G.L.J. went to her counselling session in Kelowna. She asked her neighbour to watch the boys for a few hours until she returned. When she came home later that day, she learned that T.G.J. had accidentally fallen out of a tree. Having first aid training, Ms.

G.L.J. examined him and felt he was fine. [ 36 ] The next day, Mr. Demerchant visited Ms. G.L.J.’s home and found T.G.J. alone, with visible scratches and bruises on his face from the previous day’s fall. Unable to reach Ms. G.L.J., he took T.G.J. to his office. He left a note for Ms. G.L.J., who met with him later that day. Mr. Demerchant advised Ms. G.L.J. against leaving the children home alone. He instructed her to take T.G.J. to the hospital to have him assessed. Ms. G.L.J. complied. Fortunately, T.G.J. was fine. Respite services were put in place. [ 37 ] The second incident occurred on April 9, 2008. Ms.

G.L.J. received a late-night request to drive someone to work. The children were sleeping and no other adults were in the home. Ms. G.L.J. made a decision that she later regretted. She decided to wake G.W.V. and have him to watch the children while she was gone. He was only 12 years old and has no recollection of being woken. T.R.J., who was not yet three, woke at some point and somehow managed to exit the house unnoticed. When Ms. G.L.J. arrived home and realized he was missing, she was frantic. She called police and learned that he was found walking alone on the street wearing only a shirt and pants.

He was without a jacket or shoes, very quiet and very cold. He was immediately taken to hospital where social workers attended. When Ms. G.L.J. called the hospital, she was told she was not allowed there. [ 38 ] T.R.J. was returned to Ms. G.L.J., but was advised the Director would be seeking a supervision order. On April 30, 2008, a supervision order was imposed for a period of six months. [ 39 ] During this six month order, Mr. T.V. began to provide more assistance with the care of the children. Ms. G.L.J. continued her counselling.

No issues arose that caused the Director concern. [ 40 ] The supervision order expired on October 30, 2008. Approximately two months later, the Director received a report that Mr. T.V. hit both G.W.V. and T.G.J. When interviewed, G.W.V. denied any assault had occurred, but T.G.J. disclosed that his father had hit him. Mr. Demerchant met with Ms. G.L.J. and she acknowledged that Mr. T.V. had indeed struck both boys. Mr. Demerchant instructed Ms. G.L.J. to have Mr. T.V. leave the home, which she did. He also spoke to Mr. T.V. on the telephone and told him that he was to stay away. Mr. T.V. was angry, but complied.

He left the home and went to live at his camp nearby. [ 41 ] The Director sought another supervision order. On December 24, 2008, a three month supervision order was granted, with the children to remain in Ms. G.L.J.’s care. Counselling for Ms. G.L.J. through Ms. Hamm continued. G.W.V. and T.G.J. were provided with one-to-one workers. Mr. T.V. was permitted supervised access to the children, by a person approved by the Director. [ 42 ] Given that it was Christmas time, Ms. G.L.J. asked Mr. Demerchant whether Mr. T.V. might have access to the children. Mr.

Demerchant was unable to obtain a supervisor on such short notice over the holidays, so the request was denied. [ 43 ] In January of 2009, the Director’s representatives learned Mr. T.V. had seen his children over the Christmas holiday. Ms. G.L.J. had travelled with the children to visit relatives near Lytton, not expecting Mr. T.V. to be there. Upon her discovery, she chose to stay, as did Mr. T.V. The other adult present was not an approved supervisor. The family had a wonderful Christmas together. However, as a result of Mr. T.V.’s unapproved access, the Director removed the children from Ms.

G.L.J.’s care on January 6, 2009. All three boys were initially placed with D.L. and B.L. T.R.J. was soon moved to another foster home, the home of G.M. [ 44 ] On January 7, 2009, an interim custody order was granted to the Director. In February of 2009, the Director applied for a three month temporary custody order, which was opposed by the parents. The matter was scheduled for trial, but mediation occurred in the meantime.

This led to two agreements: 1) a voluntary care agreement regarding G.W.V. was signed on August 4, 2009, allowing G.W.V. to remain in the foster home of D.L. and B.L.; and 2) T.G.J. and T.R.J. were returned to Ms. G.L.J. on August 7, 2009, under a six month supervision order with terms that included a term that neither parent use physical discipline. [ 45 ] During this same timeframe, Mr. Demerchant was removed as their social worker as a result of concerns raised by the parents.

[ 46 ] When T.G.J. and T.R.J. were returned under supervision in August of 2009, Ms. G.L.J. was largely on her own with them, with some assistance from Mr. T.V. She continued to struggle with symptoms of post-traumatic stress disorder and found some relief in self- soothing techniques, such as frequent baths and smoking marijuana. She continued to see her counsellor in Kelowna. [ 47 ] The parents complied with the terms of supervision, including successful completion of a six week parenting course, Parenting Wisely, offered through Merritt Youth and Family Resource Services.

They continued to work with the family support worker. [ 48 ] Unfortunately, while taking these courses, Mr. T.V.’s anger continued to erupt in violence. He assaulted Ms. G.L.J. twice during this timeframe. On one occasion, he pushed her against a wall and placed his hands around her throat, choking her. On the other occasion he pushed her. [ 49 ] On December 8, 2009, the Director received a report that Mr. T.V. “slammed” T.R.J. into a chair. The court heard considerable evidence about the reported and actual amount of force used by Mr. T.V.

However one describes the force, it is clear that it was significant enough that T.R.J. cried. He told an interviewer that “dad hurt me”. The force was significant enough that Ms. G.L.J. took T.R.J. to see their family doctor. T.R.J. suffered a small bruise on the back of his thigh. Ms. G.L.J. again had Mr. T.V. move out of the family home. [ 50 ] One can only imagine the stresses impacting Ms. G.L.J. at this point. She had just begun a long healing process of her own.

She struggled with symptoms of P.T.S.D., she was going through the residential school hearing process, she recently lost G.W.V. to a voluntary care agreement, she was under the Director’s supervision of her two youngest boys and trying her best to comply with its terms, she was struggling with a husband who was trying and sometimes failing to control his anger, resulting in physical violence toward her and the children, and she had just removed her husband from the home. [ 51 ] The children were suffering from some of these stresses as well, T.G.J. in particular. Ms.

G.L.J. is clearly a very strong woman, but everyone has a breaking point. Hers occurred at the end of December, 2009. [ 52 ] Mr. T.V.’s absence that Christmas impacted T.G.J. significantly. His behaviour deteriorated. He expressed sadness about the possibility of foster care again to a teacher, saying he “hates his life”. [ 53 ] Over the Christmas holidays, T.G.J. took a knife, threatened extended family members and ran to his bedroom where he cut up all of his clothing and other items.

He told his mother he “wished she was dead”, and that he “wants my dad here”. [ 54 ] Realizing she needed help, she reached out to D.L., G.W.V.’s foster parent and a person she trusted. She asked her to take T.G.J. and then, the next day, T.R.J. Ms. G.L.J. signed a Voluntary Care Agreement for T.G.J. and T.R.J. January 2010 to the Present [ 55 ] All three brothers have been very well cared for by Mr. and Mrs. L. Much of their time and energy has been dedicated to T.G.J., who has many special needs. [ 56 ] When T.G.J. was first back with the L.’s, he was angry, anxious and troubled.

He had episodes of rage and what Ms. L. described as “blanking out”. He began to speak about wanting to die. [ 57 ] In early 2010, it became apparent that T.G.J. needed to move schools. In addition to issues of inappropriate discipline that arose at the school, January 2010 school records reflect that T.G.J.’s behaviour was deteriorating there as well. A school record dated January 8, 2010 states: “T.G.J. has been acting out. Back in care for the second Christmas in a row ... T.G.J. shut down and would not write. Sub had him go to office. Terry – principal in charge today – spoke with T.G.J.

He referred to hating school and this life. He raised statements re: suicide. Terry called Ministry; and I took T.G.J. to the boardroom to talk to him. He was not cooperative and said he wanted to die. I tried to encourage him, telling him that he was cared for. I asked if I could call D.L. and let her know that he was not working. He said “go ahead, I don’t care.” He said that he hated being in foster care and didn’t like D.L. I phoned D.L. She said that he had been talking like that at home the night before to her husband and she believed that he meant what he was saying about dying.” [ 58 ] Mrs. L. and Ms.

G.L.J. worked together to have T.G.J. and T.R.J. moved to Diamondvale Elementary School in February of 2010. T.G.J. in particular has benefitted from this move. He received learning assistance immediately. He was referred for a speech and language assessment in April of 2010, which resulted in several useful recommendations. He has also received the benefit of an Individualized Education Program, with learning assistance and other accommodations. [ 59 ] T.G.J. also began to work with Magdolna Tornyai, a Child and Youth Mental Health clinician in Merritt. Ms. Tornyai testified.

She is very passionate about her work and very supportive of T.G.J. and his parents. She worked first with T.G.J. and then, later with them together. [ 60 ] Ms. Tornyai worked with T.G.J. approximately once every week from February until November of 2010. She testified that T.G.J. was initially referred to her because he had tried to hurt his eye with a pencil. As a result, she did a “suicide assessment” with T.G.J. In the course of this assessment, she uncovered that T.G.J. had not seen his parents for awhile and that he really missed them. Ms.

Tornyai took it upon herself to assist in arranging visits with the parents. She stated: “I knew that his mental health really needed to connect with his parents and that was true, this was very therapeutic for him” (Transcript – Proceedings at Trial, Day 2, p. 47, lines 45-47)

[ 61 ] While Ms. Tornyai was conducting sessions with T.G.J. and his parents, she observed the family together in their home. Her observations were positive. She saw T.G.J. as “ comfortable in the lap of his parents ”. She observed what the court has heard a great deal about in this proceeding - that T.G.J. has a genuine passion for his First Nations culture. Ms. Tornyai observed a genuine closeness between T.G.J. and his parents. She reported that T.G.J. was clear with her that he wanted to live with his parents.

When she asked him what would make his suicidal difficulties go away, T.G.J. told her: “I think, like, I wake up and I am with my mom, with my dad.” (Transcript – Proceedings at Trial, Day 2, p. 49, lines 25 and 26) [ 62 ] Ms. Tornyai also expressed frustration. She was frustrated with a social worker’s lack of responsiveness to her request to provide T.G.J. with access to his parents. When her request was met with a simple “no” she testified that both she and T.G.J. found that “ very hard to hear ”. Ms.

Tornyai also expressed frustration with a lack of funding that resulted in her inability to continue on with sessions with T.G.J. and his parents. [ 63 ] In the spring of 2010, T.G.J.’s troubling behaviours began to include self-harm. He began to repeatedly pick at his skin on his arms, legs, face and eyes. This led to chronic eye infections and a staph infection, conditions that continue to require ongoing medical care and monitoring.

He also developed motor tics, which include grimacing and eye blinking, as well as involuntary vocal tics, such as snorting, sniffing or a low growling sound. [ 64 ] Both parents’ visits with their children were supervised from April of 2010 until June of 2011. Nicho Wilson, the visit supervisor, testified. Her notes were filed as exhibits. Her evidence reflects positive interactions between the parents and children. She observed them playing, sharing meals, cooking traditional foods, laughing together, beading and drawing to name a few activities. [ 65 ] Mr.

T.V. continued working on his own recovery during this time. He began seeing Doreen Jules, a mental health and addictions worker through Scw’exmx Community Health, in May of 2010. Ms. Jules testified. She counselled Mr. T.V. with respect to anger management over the course of approximately 40 sessions between May 6, 2010 and January 25, 2012. She is very supportive of Mr. T.V. and feels that although he is a “work in progress”, he has made a lot of progress in their time together. [ 66 ] Ms. Jules described that Mr.

T.V. has been able to learn to focus more on himself and the role he plays in conflict and less on his partner. Mr. T.V. has learned what triggers him, such as a loud voice like Mr. Demerchant’s. He has learned to use specific tools to manage his angry emotions when they arise, such as a technique called “HALT”. HALT stands for “hunger, anger, lonely or tired”. It is a problem-solving technique that assists Mr. T.V. in identifying the source of the emotion and addressing it before his anger dominates. [ 67 ] On June 30, 2010, Ms.

G.L.J. signed a further four month Voluntary Care Agreement with respect to T.G.J. and T.R.J. Both parents continued to work very hard on their own healing and recovery in order to better themselves as parents. [ 68 ] In July of 2010, Ms. G.L.J. completed a five week residential treatment program on Vancouver Island offered through the Tsow-Tun Le Lum Society. At the time of her admission, Ms. G.L.J. listed the following goals:

a) deal with residential school issues;

b) deal with abandonment issues; and

c) deal with grief and loss. [ 69 ] Ms. G.L.J. testified openly about her experience there. The program coordinator and counsellor involved with Ms. G.L.J. both reported that “Georgina was ready and willing to be here. She shared openly and honestly.” [ 70 ] Ms. G.L.J. learned a great deal from her experiences during this program. For the first time in her life, she opened up about all of the abuses she suffered in her childhood, the abandonment she felt through her attendance at residential school and the addictions and suicides present in her “family tree”. [ 71 ] During each week of the program, Ms.

G.L.J. had a one-to-one session with a psychologist. She also had the benefit of many group sessions involving the participation of traditional healers and teachers. Ms. G.L.J. learned a great deal about herself, including how to develop a self-care plan. [ 72 ] With respect to Ms. G.L.J.’s further therapeutic goals and recommendations, the program coordinator and her counsellor wrote that she should: “...continue to see a therapist that understands post-traumatic stress disorder and the impact this has on daily life and relationships.

Georgina is encouraged to use the E.F.T. (Emotional Freedom Therapy) tapping exercise to reduce and eliminate stress. Georgina is encouraged to continue to develop and maintain strong, healthy, personal boundaries and communication skills and follow her after- care plan”. [ 73 ] When Ms. G.L.J. completed this program, she was encouraged to take some time on her own at home to process and begin to implement what she had learned. She took two months to do this. Although necessary for her own personal healing and growth, her extended absence was hard on the children.

[ 74 ] Mr. T.V. also continued on his path toward healing. In addition to his continued work with Doreen Jules, he also began working with Glennis Holmes, a social development worker with the Coldwater Indian Band in October of 2010. At first, Ms. Holmes was an advocate for Mr. T.V. with respect to his dealings with the Director’s representatives, but later she began to meet with him in her capacity as a social development worker. Ms. Holmes brought a wealth of education and experience to her dealings with Mr. T.V. [ 75 ] Ms. Holmes’ role in her meetings with Mr.

T.V. was not that of a counsellor, but as more of a sounding board. She provided him with advice. She described the “direction of her counsel with Tim” as “ calming him down ”. She testified that she would meet with him, listen to him and “ calm down in terms of the conflict with the Ministry. Calm down with the blaming, that you are not alone. There is support behind you and your job is to get well, so that you can be involved at a level of responsibility with your children. ” [ 76 ] Ms. Holmes is very supportive of Mr. T.V. She noticed a “tremendous difference” in him over their time together.

In particular, she noticed that after he came back from his first treatment centre that his “ angry flare ups ” were not as “ deep rooted ”. [ 77 ] From October 31 to November 10, 2010, Mr. T.V. attended a 10 day “Reclaiming Wellness” residential treatment program offered by the First Nations House of Healing at Tsa Kwa Lute Lodge on Vancouver Island. [ 78 ] Similar to Ms. G.L.J.’s five week residential treatment program, Mr. T.V.’s program focused on abuse, with particular emphasis on residential school abuses. Mr. T.V. described his experience in this program as very intense.

Many people disclosed the abuses they suffered. Mr. T.V. found that a particular elder reached him, opening him to learning about his past, how to be honest with himself and others and, perhaps most importantly, how to begin his own path to wellness. When describing the program’s structure, Mr. T.V. showed some insight into how his healing has only just begun when he testified: “Mostly the wellness was finding a place where you can begin, begin your healing from.

And to me, that part, that little boy on the confession stand getting beaten, that was me, that’s where I started to drum, and then since I haven’t grown from that because I haven’t had any input on it, and I am currently still working with that part. And maybe I should have another conversation with Tim may open up more. I am so shut down that I am scared.” (Transcript – Proceedings At Trial, Day 8, p. 105, lines 21-29) [ 79 ] Mr. T.V. was fortunate to attend another 10 day program at the same location entitled “Finding the Beat of your Drum”, from November 30 to December 10, 2010. Mr.

T.V. summarized this program as putting him on a “path of self-sufficiency”. Through his work in this program, he learned that he no longer wanted the on-call, ranching work that saw him away from his family for long periods at a time. He learned that he wants to “move forward” and secure employment that sees him home at night and off social assistance. As a result, he did obtain that employment. He later approached Ms. Holmes, who assisted him in obtaining work as a driver. This work is stable and more financially secure. [ 80 ] This program also enabled Mr.

T.V. to realize one of his strengths – he is a good teacher. He taught outdoor skills to many people in the past, including his children. He now feels he has much to offer them and others, particularly with respect to First Nations culture and teachings. [ 81 ] On November 12, 2010, when Mr. T.V. was in the midst of his work at the First Nations House of Learning and Ms. G.L.J. had recently returned from her five week program and subsequent alone time, the Director applied for a continuing custody order of T.G.J. and T.R.J. [ 82 ] On January 24, 2011, social worker Connie Nicholson sent Mr.

T.V. a letter, strongly urging him to take a 12 week program in anger management offered through Conayt. He immediately signed up and completed the course on March 31, 2011. [ 83 ] On January 31, 2011, the Director’s application that both continuing custody order applications – the one previously filed with respect to G.W.V. and the subsequent one with respect to T.G.J. and T.R.J. - all be heard together, was granted.

The subsequent hearing of these two applications did not commence until almost exactly one year later, far too long in the lives of such young children. [ 84 ] Over the year while the parties waited for their hearing, the parents struggled in their communication with the Director’s representatives. Many examples were offered in evidence. For example, Ms. G.L.J. wanted to attend the boys’ school activities, but felt she was not allowed to by the Director’s representatives. Ms.

G.L.J., who had always been involved in the children’s medical and dental care, wanted to attend doctor’s appointments, but was not notified in advance. This was particularly problematic with respect to T.G.J. who has many physical, emotional and psychological challenges. [ 85 ] Ms. G.L.J. and Mr. T.V. had supervised visits with T.G.J. and T.R.J. until July of 2011. These visits all went well. Unsupervised visits commenced that summer. [ 86 ] T.G.J. had the benefit of an extensive assessment done through the Interior Health Children’s Assessment Network.

He was referred for these assessments by his paediatrician, Dr. Chappel, in May of 2011. T.G.J. was assessed by child and adolescent psychiatrist, Dr. Bruce Pipher, and Dr. Carmen Swanson, a registered psychologist. [ 87 ] The assessments were comprehensive. They contained a number of recommendations that should be implemented to assist T.G.J. in his future development. One of the troubling aspects of the assessments was that Mr. T.V. and Ms. G.L.J. were not included.

They were not advised of the assessment dates, not included in providing any background information to the assessors and not allowed to provide any support for their son. Any background information about them, their family, their attitudes and their dealings with the Ministry and their children, was provided by the Director’s representatives and/or Ms. L.

Input from the parents would have benefitted not only the assessors (and ultimately T.G.J.) by having more complete information, but it would have also benefitted the parents in allowing them to direct contact and communication with the professionals involved in helping their son. [ 88 ] Dr. Pipher diagnosed T.G.J. with the following:

Axis I : Complex post-traumatic stress disorder (PTSD), Impulse Control Disorder (NOS) (excessive picking behaviours), Anxiety Disorder (NOS), Simple Motor and Vocal Tics Axis 2 : Mild Intellectual Disability Axis 3 : Recurrent eye infection Axis 4 : Early severe psycho-social stressors include: history of experienced and witnessed domestic violence, social isolation. [ 89 ] Dr. Pipher made numerous recommendations, outlined at pages 7 and 8 of his report (Exhibit 2, Tab 14). Some of these recommendations are: 4.

Ongoing intervention with Child and Youth Mental Health would be encouraged recognizing an underlying anxiety disorder. T.G.J. struggles to be able to implement strategies from direct 1:1 session and it would be very important that his caregivers are well versed in helping children manage anxiety. Use of relaxation strategies particularly for night time settling would be important. Website resources for anxiety were provided. 5. T.G.J. will require an ongoing Individualized Education Plan recognizing an Intellectual Disability associated with social and emotional challenges. 6.

T.G.J. reports that he has a number of outside interests which are very important to him including fishing, origami, cooking, beading and connection with his First Nations heritage. Having ongoing positive contact with his First Nation activities and social network and support would be very important to consider. 7. Ongoing medical monitoring and ophthalmology evaluation with yourself around his complaint of eye pain and infection was encouraged. 8.

Considering the significant behavioural challenges with picking T.G.J. may benefit from the use of medication to help address anxiety as he has been having regular counselling with limited success ... [ 90 ] Dr. Pipher concluded that if his nine recommendations (not all have been outlined above) fail to result in improvement in behaviour, consideration should be given to conducting an inpatient psychiatric evaluation of T.G.J. [ 91 ] Drs. Swanson and Heyes, psychologists, made many similar recommendations in their report (Exhibit 2, Tab 16).

These recommendations are: • T.G.J. continues to require an Individual Education Plan (I.E.P.) that focuses on gaining functional adaptive and academic skills, particularly in the areas of expressive language and socialization. He will continue to require intensive behavioural and academic supports. Specialized behavioural intervention services would be helpful. • Consideration might be given to medical treatment for improving attention.

Behavioural issues related to low frustrated tolerance, irritability, anger control, self-harm and compulsive behaviours would also need to be considered. • T.G.J. would benefit from a learning environment with reduced distractions and sensory stimulation. • Continue to provide T.G.J. with visual instructions. Providing concurrent parallel multi-model instructions such as simplified verbal instructions, manipulatives, and audio queues could also be helpful. • T.G.J. would continue to benefit from consistent routine and structure.

T.G.J. requires consistency of supportive relationships (adults and peers) and social approval and encouragement for positive communication and interaction behaviours. • T.G.J. might benefit from learning methods for reducing anxiety such as deep breathing, relaxation, and exercise. Activities which increase his confidence will help. He needs assistance with monitoring his level of anxiety so that he can select alternatives to anger, compulsive behaviour, and withdrawal. • T.G.J. requires psychiatric and medical monitoring in the community. • Capitalize on T.G.J.’s strengths and where he does well.

For example, T.G.J. enjoys cultural enrichment activities such as beading, and continuing to develop interest in this area could be helpful in assisting with his identity development. • Enlisting a support worker to facilitate engagement in cultural enrichment activities is also recommended. M.C.F.D. Children and Youth with special needs may assist with access in resources. • Maintain counselling support through Child and Youth Mental Health. • T.G.J. may respond well to a self-harm behaviour plan developed through a functional behaviour analysis.

• This process requires determining the circumstances surrounding the behaviour, establishing a reason or purpose for the behaviour, and finding alternative behaviours that are incompatible but meet the same need. • Consideration might be given to possibly involving T.G.J.’s parents in culturally sensitive counselling with a view towards providing information about T.G.J.’s condition and enlisting their support in T.G.J.’s treatment plan (it is assumed that the foster parent as primary caregiver will continue to be involved in treatment). • Whenever possible, provide T.G.J. with structure and behavioural expectations.

Let T.G.J. know what will happen in advance, what is expected, and then reinforce positive behaviours. • T.G.J. will need encouragement to learn ways of handling social situations appropriately and successfully. Role-playing may help. Assisting him with being involved in social recreational activities that he enjoys may provide him with opportunities to socialize in a less stressful context. [ 92 ] These assessments were sent to the Director in October of 2011. The parents did not receive them. [ 93 ] Between July and October of 2011, the family was allowed unsupervised visits.

By all accounts, these visits went well and were good for the children. In mid-October, when the family seemed poised to receive expanded visits, all of the progress that had been made came to a crashing halt. [ 94 ] Scw’exmx Child and Family Services Society (Scw’exmx) hosted a weekend hunting trip from October 14 to 16, 2011 for children in care. T.G.J. attended with Buzz Manuel and Morgan Christopher, family and child support workers. Mr. T.V. also attended with his brother, H.S. Mr. T.V. had been advised by Mr.

Demerchant prior to the camp that T.G.J. was not allowed to sleep in his camper. [ 95 ] By all accounts, the weekend was a wonderful experience for T.G.J., who treasures his time with his father, but particularly the time they can share enjoying their mutual outdoor passions. Mr. T.V. and T.G.J.’s uncle, Mr. S., both spent time with T.G.J., teaching him hunting techniques. It was a very positive experience. [ 96 ] Yvonne Hare, executive director of Scw’exmx, was present during this weekend. She testified.

She confirmed what she wrote to the Director’s representatives shortly after the weekend trip – she described Mr. T.V. as: “...very attentive, loving and proud of his son. T.V. was very patient with T.G.J. and taught him how to process deer.

I could honestly say out of all of the youth at the hunting camp I believe T.G.J. learned the most and got the most out of his experience and that was in great part because of his family being there to walk him through this special experience”. [ 97 ] Shortly after the camp, the Director suspended the children’s access to their parents for non-compliance with its direction that T.G.J. not sleep in his father’s camper during the hunting trip. Ms. L. reported to the Director’s representatives that T.G.J. told her he slept in Mr. T.V.’s camper and had been told secrets. Mr. Demerchant phoned the parents.

He advised them that they needed to come in for a personal meeting to discuss what occurred before access would be resumed. The parents did not want to meet with Mr. Demerchant because of their previously expressed concern about his resemblance to a past abuser. Another social worker was eventually assigned, but a supervised visit was not arranged until Christmas, for one or two hours, supervised by the L.’s at their residence. The next visit was not until February of 2012, again supervised. [ 98 ] Why the Director’s representatives chose to include Ms.

G.L.J. in the initial suspension of access and subsequent change to supervised access is unclear to me. She had no involvement in what occurred (or did not occur) at the hunting camp. [ 99 ] Why Mr. Demerchant contacted the parents to come in for an in-person meeting is also unclear. The Director’s representatives were aware by this point that Mr. Demerchant reminded the parents of a past abuser, which prevented a good working relationship. The parents did not want any dealings with Mr.

Demerchant and they were resistant to a personal meeting. [ 100 ] Why the Director’s representatives did no further investigation into the truth of the allegations is also very unclear. Further investigation would have revealed that T.G.J. did not sleep in the trailer with his father. [ 101 ] Ms. Hare sent an e-mail to all potentially involved social workers on October 27, 2011 outlining her personal observations that weekend and attaching an e-mail from Morgan Christopher. Mr. Christopher stated that he slept both nights in the same location as T.G.J. and Buzz Manuel.

He confirmed that T.G.J. did not sleep in Mr. T.V.’s camper. The Court heard confirmatory evidence from H.S. and Mr. T.V. Further support for this position came from Ms. Tornyai. She testified that when she asked T.G.J. about the hunting trip, he said “ Can you imagine Magdolna, ....I couldn’t sleep with my dad. ” (Transcript of Proceedings at Trial, Day 3, page 41, lines 19- 21) [ 102 ] Both sides bear some responsibility for the impasse that saw essentially no access for four months.

The parents certainly could have done more than drop a note at the Ministry office requesting to discuss visits on December 6, 2011. The Director’s representatives certainly could have done more by investigating what did or did not happen that weekend and by taking a more sensitive, proactive approach in their dealings with the parents. Someone other than Mr. Demerchant could have met with the parents from the outset, explained the information they had received and discussed how best to move forward. They could have, at the very least, followed up with the parents’ December 6th note.

They did not. [ 103 ] What occurred following the hunting trip weekend was the result of what is so clearly now, in hindsight, a misunderstanding. That this misunderstanding led to T.G.J. and T.R.J. having no contact with their parents (except a short supervised visit at Christmas) for four months is tragic. It impacted T.G.J. very negatively. [ 104 ] D.L. described T.G.J. as “falling to pieces” in the timeframe between the hunting trip and the time this hearing commenced in January of 2012. A number of significant, negative events occurred during this period. T.G.J.’s access to his parents stopped

unexpectedly. Visits had previously moved to unsupervised and he had just spent a good weekend with his father and uncle doing what they loved. Now, without warning, he could no longer see either of his parents. As well, Ms. G.L.J. informed the children that she and Mr. T.V. were no longer together. Three family birthdays occurred in close succession and the L.’s family dog died. [ 105 ] With all of these changes, T.G.J.’s behaviour deteriorated. In November of 2011, he lit three fires over the course of a week and a half. Ms. L. described two of these occurrences.

T.G.J. lit one fire in his bedroom, using hand sanitizer as an accelerant. He lit the other outside, under a boat motor, using gasoline as an accelerant. Fortunately the fires were discovered and extinguished with no injury. [ 106 ] After the first four days of this hearing concluded on February 2, 2012, D.L. agreed to supervise access visits for the family. She brought T.G.J. and T.R.J. to the J./V. residence for visits once or more each week. Unfortunately this arrangement lasted only a few weeks. [ 107 ] During a supervised visit at the J./V. residence on March 7, 2012, Ms.

L. believed she heard someone at the door to the residence ask Ms. G.L.J. for a “dime”, referring to drugs. Ms. G.L.J. denies this, stating the person was a friend of her eldest son’s and had simply asked her for one his “games”, referring to a video game of some sort. I believe Ms. G.L.J. After hearing 10 days of evidence over the course of a year, the court has not heard one suggestion, from any source, that the parents ever sold or currently sell drugs.

In addition, one cannot imagine that, having just received access to her children again, after such a long time away, that she would deal drugs in front of the access supervisor. Once again, this is a misunderstanding. Ms. L. misheard and misunderstood what she saw. [ 108 ] Immediately following Ms. L.’s allegation, the Director suspended the parents’ access again. Five days later, T.G.J. attempted suicide. [ 109 ] The events of March 12, 2012 are tragic. On that day, T.G.J. returned to his foster home from school seemingly in a good mood.

After an exchange with one of his brothers, T.G.J. went to his bedroom and tried to hang himself. He tied a plastic cord tightly to the ceiling and tried to put it around his neck while standing on a chair. Fortunately, G.W.V. came into his bedroom and stopped him. He called for Ms. L., who immediately attended and wrapped T.G.J. in her arms. She asked him if he was going to hurt himself. T.G.J. said that he was, that he “ just wanted to die ”. He further said that “ he did not want to choose ”.

This is clearly a reference to his ongoing internal conflict - feeling he has to choose between his foster parents and his biological parents. [ 110 ] T.G.J. was taken to Royal Inland Hospital in Kamloops that day and admitted. During the course of his admission, he was seen by child psychiatrist Dr. Hosenbocus. The court has the benefit of Dr. Hosenbocus’ report dated March 14, 2012 (Exhibit 8). [ 111 ] The parents were not informed of this tragic event by the Director’s representatives. G.W.V. told them. The following day, the parents attended a previously scheduled meeting with a social worker.

The social worker did not tell them what happened to T.G.J. right away. The parents estimate the meeting was approximately half way through before they were informed. [ 112 ] T.G.J.’s comments to Dr. Hosenbocus while in hospital reveal the extent of his torment. Dr. Hosenbocus reported: “Although he likes his foster home and foster parents he feels sad because he cannot go back and live with his biological parents. He mentioned that he feels depressed because he knows this is not possible as the family went to the court in January and he was told he needed to stay in the foster home.

He mentioned that he misses his dad a lot and understands that he cannot go home because his dad has beat him up in the past as well as him witnessing violence with his father beating up on his brother. He does not feel loyal to his parents if he starts to like his foster parents, especially his foster dad too much as this would betray his loyalty to his father. He mentioned that sometimes he feels very irritable and angry and then he “shuts down” or he becomes aggressive himself.” [ 113 ] Dr.

Hosenbocus summarized T.G.J.’s feelings well when he wrote: “This is a very difficult situation as T.G.J. is torn between living in a foster home under court order and going back to his family, especially a father who he idealizes.” [ 114 ] On January 18, 2012, G.W.V. and T.G.J. met with Kamloops lawyer, Stephen Soll. Mr. Soll was tasked with providing their views to the court. After meeting with them, he provided a letter to the court dated January 27, 2012 (Exhibit 1).

G.W.V. was clear that he wished to remain in the care of his foster parents and to spend time with his parents on his terms. [ 115 ] T.G.J. was clear about what he wanted, but unclear with respect to his reasons. He wants to return to his parents’ care, but was unable to articulate why in any meaningful way. He did advise Mr. Soll that he was happy living with D.L. and B.L. [ 116 ] The parents continued on their individual paths toward healing in 2012. From May until July of 2012, Ms. G.L.J. took and completed the Living Without Violence Redpath Program, offered through Scw’exmx. Ms.

G.L.J. described this program as very helpful to her as it was aimed at dealing with abuse and family violence. She described it as a “ real eye opener ”. [ 117 ] Mr. T.V.’s growth and development over the last three years was apparent throughout a lot of his testimony, but nowhere as apparent as when he testified about a course he completed in December of 2009 called Parenting Wisely. When asked if he had anything he wanted to say with regard to the concept of parenting wisely, he testified: “ I’m a little scared to say it. The way I was, I’m actually very ashamed the way I was.

And I don’t want to be like that no more, yeah. That’s why I am seeking - - still seeking treatment on it.” (Transcript – Proceedings At Trial, Day 8, p. 104, lines 7-11)

[ 118 ] As referenced earlier in these reasons, Mr. T.V. obtained stable employment as a driver for the Coldwater Indian Band in 2012. His employment consists of driving Band members from Merritt to Kamloops and back for various medical appointments. Mr. T.V.’s guaranteed work days are Monday, Wednesday and Friday, but is on call Tuesdays and Thursdays. Unfortunately, he only learns the morning of his on call days whether he is needed that particular day. [ 119 ] During the summer of 2012, Mr. T.V. was to have supervised access every Tuesday in accordance with his work

schedule for two hours and every other Saturday for four hours. Unfortunately, because of the uncertain nature of Mr. T.V.’s work

schedule on Tuesdays and Thursdays, he had to cancel or reschedule a number of visits. Although he worked with the visit supervisor to rearrange the schedule, social workers were often not informed of these arrangements. [ 120 ] T.G.J. reacted to his visits being cancelled with increased picking and, at one point, physically attacked Ms. L. [ 121 ] Ms. G.L.J. has made efforts to be gainfully employed. In 2012, she started her own business picking and selling produce on a seasonal basis. She also sells beadwork and does odd jobs. [ 122 ] As of the conclusion of this hearing, Ms. G.L.J. and Mr.

T.V. were not together as a couple. They were not living together, but both expressed positive feelings toward one another. Both expressed their desire to have the children returned to Ms. G.L.J., with significant involvement with Mr. T.V., submitting that in the three years their two younger children have been in care they have done many things to improve their parenting skills and ability to keep the children safe. LEGISLATION: [ 123 ] Counsel has set out the relevant sections of the Child, Family and Community Service Act (the Act ) in their written submissions.

The relevant portions of those sections are as follows: Guiding Principles: 2. This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (

d) the child's views should be taken into account when decisions relating to a child are made; (

e) kinship ties and a child's attachment to the extended family should be preserved if possible; (

f) the cultural identity of aboriginal children should be preserved; (

g) decisions relating to children should be made and implemented in a timely manner. Best Interests of Child: 4(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: (

a) the child's safety; (

b) the child's physical and emotional needs and level of development; (

c) the importance of continuity in the child's care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child's cultural, racial, linguistic and religious heritage; (

f) the child's views; (

g) the effect on the child if there is delay in making a decision.

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. When Protection is Needed:

(1) A child needs protection in the following circumstances: (

a) if the child has been, or is likely to be, physically harmed by the child's parent; (

b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent; (

c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child's parent is unwilling or unable to protect the child; (

d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent; (

e) if the child is emotionally harmed by the parent's conduct; (

f) if the child is deprived of necessary health care; (

g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment; (

h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care; (

i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being; (

j) if the child's parent is dead and adequate provision has not been made for the child's care; (

k) if the child has been abandoned and adequate provision has not been made for the child's care; (

l) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force.

(2) For the purpose of subsection (1)(e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. Protection Hearing: 40

(1) At the protection hearing the court must determine whether the child needs protection.

(2) If the court finds that the child does not need protection, it must (

a) if the child was removed, order the director to return the child as soon as possible to the parent apparently entitled to custody unless the child has already been returned, and (

b) terminate any interim order made under sections 33.2 (2), 35 (2) and 36 (3).

(3) If the court finds that the child needs protection, it (

a) must consider the plan of care presented by the director, and (

b) may hear any more evidence the court considers necessary to help it determine which order should be made under

section 41. Orders Made at Protection Hearing: 41

(1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the child's best interests: (

a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director's supervision for a specified period of up to 6 months; (

b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision, for a specified period in accordance with

section 43; (

c) that the child remain or be placed in the custody of the director for a specified period in accordance with

section 43; (

d) that the child be placed in the continuing custody of the director.

(1.1) When an order is made under subsection (1) (

b) or (c), the court may order that on the expiry of the order under subsection (1) (

b) or (

c) the child (

a) be returned to the parent, and (

b) be under the director's supervision for a specified period of up to 6 months.

(2) The court must not order under subsection (1) (

d) that the child be placed in the continuing custody of the director unless (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, (

b) a parent is unable or unwilling to resume custody of the child, or (

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there islittle prospect it would be in the child's best interests to be returned to the parent.

(2.1) If an order was made under

section 33.2 (2), the child has not been removed since that order was made and the court finds that thechild needs protection, the court must order that the director supervise the child's care for a specified period of up to 6 months.

(3) The court may attach to an order under this

section any terms or conditions recommended by the director to implement a plan of care. The Director brings its application pursuant to section 41(1)(d), highlighted above. ANALYSIS 1. Are T.G.J. and T.R.J. in need of protection? [124] The first issue for the court’s determination is whether T.G.J. and T.R.J. are in need of protection. [125] Her Honour Judge Bruce (as she then was), thoroughly outlined the law in this area in Director of Child and Family Services v.M.K. and M.S. and J.S., 2000 BCPC 63 , 2000 B.C.P.C. 0063.

In regard to the issue of protection, the court wrote atparagraphs 63 and 64: 63 Addressing the second issue, are the children or any of them in need of protection? The circumstances in which a child needsprotection are not limited to those specified in

Section 13 of the CFCSA because the right to be protected is a paramount principle of lawbelonging to the child. The interaction between Sections 2 and 13 of the CFCSA was explained by Lambert J.A. in B.S. v. Director ofChild, Family and Community Services, supra:

Section 2 provides that children are entitled to be protected from abuse, neglect and harm or threat of harm. That is a clear statement ofthat legal right.

So, in any case where the operation of s-s 13(1) did not have the effect of establishing the perpetrator or potentialperpetrator of the abuse, neglect, harm or threat of harm, or for any other reason, the paramount right created by positive law in s. 2will assure that the child is protected. [sic] ... s-s 13(1) is not purporting to create an exclusive list of circumstances where protection is needed, but rather is making theadministration of the Act more straightforward and helpful by listing many of the most usual circumstances where protection will beneeded. ...

That [legislative] purpose is to provide for protection of every child who needs protection. No child should continue in a state ofabuse, neglect, harm or threat of harm while administrators, lawyers and judges argue about which precise lettered compartment of s-s13(1) the case comes within ... 64 Lambert J.A. confirms that the onus of proof rests with the Director to show the child is in need of protection and, further, that thestandard of proof is the balance of probabilities. The evidence must show that it is more probable than not that the assertion being madeis correct.

He goes on to establish that when the Director asserts a risk of a future event, as in this case, it is the risk of the future eventand not the event itself that must be shown on the balance of probabilities. As discussed by Lambert J.A.: The result is that in considering past abuse the degree of certainty that it has occurred will be more than is required in consideringwhether abuse will occur in the future.

A ten percent risk of future abuse may meet the test of the risk being shown to exist on the balanceof probabilities, whereas a ten percent assignment of the probability that the abuse had occurred in the past would not meet the balanceof probability test. In assessing the risk of future harm, (which is called the threat of future harm in s. 2), there is room for a variable assessment dependingon the nature of the threatened harm which is in contemplation.

A threat of harm through neglect of the child's hygiene might well haveto be much more probable in order to meet the balance of probability test than a threat of serious permanent injury through physical orsexual abuse. Generally speaking, a risk sufficient to meet the test might well be described as a risk that constitutes "a real possibility". [126] In my view, it is clear from the evidence that all three children have suffered abuse, neglect and harm or threat of harm in theirparents’ home. All three children suffered physical abuse at the hands of Mr. T.V., although G.W.V. suffered to the greatest extent.

Theevidence establishes that Mr. T.V. hit T.G.J. on at least one occasion and “slammed” T.R.J. in a chair on the other. However, thenumber of times Mr. T.V.’s anger resulted in physical abuse of the children is immaterial - the negative effect on the children’s physical

and emotional well-being is the same. Both younger boys were also negatively impacted emotionally by witnessing Mr. T.V.’s violence toward G.W.V. [ 127 ] Mr. T.V. was violent toward Ms. G.L.J. in the past as well. No evidence was presented that the children witnessed this violence, but this does not mean that they were not impacted by it. Ms. G.L.J. found herself unable to cope with caring for the children from time to time – Mr. T.V.’s violence toward her clearly played a role in her emotional instability. [ 128 ] Mr.

T.V. has made great strides toward resolving his anger issues, which stem from the terrible abuse he suffered as a child. I am satisfied that he is dedicated toward making those changes, but it will be an ongoing process. [ 129 ] Ms. G.L.J. has never physically abused the children. The evidence discloses two instances where she provided improper supervision, both in the spring of 2008. The first occurred when T.G.J. was left home alone one morning. He had an accident the day before where he fell out of a tree, but this was an accident and did not occur as a result of poor supervision.

The second occurrence – where T.R.J. left the house in the middle of the night - did cause harm to T.R.J. emotionally. It also impacted T.G.J. and G.W.V. negatively as well, leaving G.W.V. with feelings of guilt and T.G.J. with feelings of anger and blame toward G.W.V. Ms. G.L.J. realizes that her decision to leave her children home alone was a poor one. [ 130 ] The evidence also discloses that Ms. G.L.J. was unable, at times, to cope with the requirements of parenting. Her own emotional turmoil overcame her, which in turn created stress and turmoil for the children.

She had the good judgment to recognize this and sought help from the Director. Ms. G.L.J. also failed to protect the children from Mr. T.V.’s violence. She tried many times over the years to protect them by removing Mr. T.V. from the home and seeking out services. Her protection would last for periods of time, but she would inevitably allow Mr. T.V. back in the home and old patterns would resume. Not only did Mr. T.V.’s return subject the children to the risk of violence, but his repeated departure and re-entry in their lives created instability.

This instability was emotionally damaging to the children, particularly to T.G.J., who has a very close bond to his father. [ 131 ] T.G.J. has suffered the most emotional harm. He very clearly demonstrates behaviours reflecting anxiety, depression and self- destructive or aggressive behaviour. The Director asserts that T.G.J.’s disorders are as a result of the parent’s actions. The parents’ assert they are a result of T.G.J. being in care, primarily because he did not demonstrate many of the troubling behaviours prior to January of 2010. In my view, neither assertion is completely correct.

T.G.J.’s situation is complex. The medical evidence supports a conclusion, as does one’s own common sense, that all of T.G.J.’s life experiences to date have led him to the fragile emotional state he now experiences. [ 132 ] T.G.J. was, at times, physically and emotionally harmed in his parents’ home, but he also experienced many wonderful times where he was well cared for, nurtured and taught a great deal, particularly about his culture. He has been well cared for by the L.’s over the last three years, but his behaviour and health has deteriorated greatly there.

He has developed picking behaviours that require significant medical intervention, lit fires and tried to hang himself. T.G.J. has made it abundantly clear to anyone who will listen that he does not want to be in foster care. He loves the L.’s, but he wants to be home with his parents. The inner turmoil he experiences from feeling he has to choose one over the other is creating even greater harm to him. [ 133 ] Ms. G.L.J. has made great strides toward her own healing, which also clearly stems from the abuses she suffered as a child. Like Mr.

T.V., I am convinced that she is dedicated toward her healing in order to provide a safe home for her children, but her process is also ongoing. [ 134 ] Given all of the above, I am satisfied, on a balance of probabilities, there is a real possibility of physical and emotional harm to T.G.J. and T.R.J. if placed in either parent’s care. Accordingly, I find that T.G.J. and T.R.J. are in need of protection. 2.

Continuing Custody Order [ 135 ] Having concluded that T.G.J. and T.R.J. are in need of protection, I turn now to consider the Director’s application for a continuing custody order. [ 136 ] I am mindful that I must not make a continuing custody order unless “the nature and extent of the harm T.G.J. and T.R.J. have suffered or the likelihood that they will suffer harm in the future is such that there is little prospect it would be in their best interest to be returned to the parent”. In determining this issue, the primary objective is, of course, to act in the best interests of T.G.J. and T.R.J.

Section 2 of the Act contains certain fundamental principles to guide the court in its determination of the children’s best interests. [ 137 ] In Director of Child and Family Services v. M.K. and M.S. and J.S. , Her Honour Judge Bruce (as she then was), thoroughly reviewed the authorities that have interpreted this area of the law. At paragraphs 74 through 76 she wrote: 74 The authorities cited by the parties have interpreted these provisions of the Act and provide additional assistance in the application of its principles to the circumstances presented by the facts of this case.

In R.L., D.L. and L.E., supra, Spencer J. says the test for a continuing care order is something short of finding that it is impossible to return the child to a parent: The appellants also argued that the learned trial judge should have limited the application of section 41(2)(

c) to those situations which are hopeless. Mr. Saucier submitted that the principle of statutory

interpretation embodied in the phrase "eusdem generis" should be applied. He pointed to subsections (

a) and (

b) of section 41(2) as being aimed only at cases where it is impossible to restore custody to a parent. I am unable to agree that subsection (

c) is so limited. Its wording belies that. A case where there is, to quote the subsection, "little prospect it would be in the child's best interests to be returned", is something short of complete impossibility. Those words take it out of the category of impossibility if one is established by subsections (

a) and (b). 75 Again, Mr. Justice Spencer's comments in The Superintendent of Family and Child Services v. Schmah, [1991] B.C.J. No. 2042 , (May 21, 1991) Van. Reg. CC900523 (B.C.S.C.) at pp. 27-28 tend to support the position that the parent's right to custody of their child is not in paramount when the best interests of the child are at stake:

One of the strongest arguments advanced for the mother centered on the very fact that this child is her natural son and on theimportance of preserving the tie of blood. That is indeed an important consideration, but the modern cases show that it is not to bedecisive where the other factors sufficiently favour a foster parent. I refer particularly to K.K. v. G.L. and B.J.L. (SCC),[1985] 3 W.W.R. 1, a decision of the Supreme Court of Canada.

At page 14 McIntyre J., speaking for the Court, sets out the modernreliance on the best interest of the child in these words: "The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological,spiritual and emotional welfare of the child. It must be the aim of the court, when resolving disputes between rival claimants for thecustody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that hewill be equipped to face the problems of life as a mature adult.

Parental claims must not be lightly set aside, and they are entitled toserious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be setaside." 76 The intent of the legislature, however, is to keep families together where this is possible. Even children who are in need ofprotection should be returned to their parents where it is safe to do so.

The fact others may provide better care for a child does notprovide a basis for a continuing care order where the parents can provide adequate care given the proper resources and services: Re: S.(C.S.), supra at p. 24. [138] Has the Director proven, on a balance of probabilities, there is a likelihood that T.G.J. and T.R.J. will suffer harm to the extentthat there is little prospect it would be in their best interests to be returned to Ms. G.L.J.? [139] Three years have passed since these boys were taken into care. Much has occurred in that time. [140] T.R.J. has done well. T.G.J. has not done as well.

Both children are happy with Mr. and Mrs. L., in the home they share withtheir older brother G.W.V., but they miss their parents. T.G.J. and T.R.J. have had various types of contact with their parents while incare. They experienced periods with no contact either due to the parents’ engagement in various residential treatment programs or theparents’ conflict with the Director. They experienced periods of very successful supervised access. They witnessed long periods ofcooperation between Ms. G.L.J. and Mrs. L. Ms.

G.L.J. often attended the L. residence, bringing traditional food for them all to share.The children also experienced a short time of limited unsupervised access that was unfortunately cut short. [141] With the varying types of access to their parents over these three years, the children’s exposure to their First Nation’s culture hasdiminished significantly. Their time with extended family has also diminished. The court heard a great deal of evidence about thefamily’s focus on their culture.

Both parents are well versed in their culture and have demonstrated a commitment to educating theirchildren in it over the years. Prior to their removal, T.G.J. and T.R.J. shared many traditional aboriginal experiences with their parents,including gathering wild food and berries, beading, camping, hunting, fishing, visiting traditional areas, discussing nature, exploringlocal areas and learning outdoor survival skills. T.G.J. enjoys these activities the most. He is passionate about fishing, hunting, campingand the outdoors.

He is happiest doing these activities and, in particular, when he is doing them with his father. [142] While in care, the L.’s have encouraged the children’s cultural activities through the school and at home to the extent they areable. They are Métis, but are not members of or educated in the children’s indigenous culture, Thompson (Shuswap). The children arenot living the First Nation’s lifestyle they experienced while in their parents’ care. [143] T.G.J. has experienced the most trauma. He has received a great deal of assistance at his new school and appears to be doingbetter there.

His physical, mental and emotional health has seen some improvement at times (less episodes of rage or blanking out), buthas seen significant deterioration at other times (development of picking, verbal and motor tics, lighting fires, suicide attempt to name afew). He has received assessments and a great deal of medical and psychiatric care. Mrs. L. and the Director’s representatives werewell-informed about his conditions, treatments and care plans and continue to address his behaviours as they arise. The parents were notincluded in any assessments, discussions or treatment plans, but they wish to be. [144] Ms.

G.L.J. and Mr. T.V. have both engaged, separately, in a great deal of counselling and treatment. Ms. G.L.J. has resolved herresidential school hearing process. She has become self sufficient by creating her own employment - work that is meaningful to her. Shecurrently lives alone, but is on friendly terms with Mr. T.V. They both appear committed toward supporting one another. Ms. G.L.J. haslearned a great deal about herself through extensive treatment and counselling. She has developed insight into family violence andsymptoms and treatment of post traumatic stress disorder. She now has a safety plan in place.

The considerable stresses she experiencedleading up to her asking for assistance in late 2009 are now largely behind her. Although she still has a long road ahead to full recovery,she feels she is in a much healthier, stronger and better position to care for her children now. I agree. [145] Mr. T.V. has voluntarily undertaken a great deal of counselling and treatment, specifically aimed at the root causes of his anger. Contrary to the Director’s submissions, the evidence does not disclose demonstrations of his ongoing anger in the last three years. Mr.T.V. has had largely supervised visits.

No instances of anger have ever been reported. Mr. T.V. has been frustrated at times with socialworkers and, on one occasion, Ms. L. One can understand his frustration at times. For example, following three months of unsupervisedvisits that went well and a wonderful hunting trip with his son, his access was suspended by a phone call from Mr. Demerchant, a socialworker who had been removed from their case due to his resemblance to the parents’ past abusers. Mr. T.V., on the evidence before me,did nothing wrong at this hunting trip.

As a result of a misunderstanding that saw both sides entrenched in their positions, he did not seehis children from some period of time after the hunting trip and was then required to have his visits supervised, under quite strict terms. He described his supervised visits as “we’re basically --- you’re handcuffed, you’re blindfolded, you’re gagged and you’re hog tied.”(Transcript of Proceedings at Trial, Day 8, page 95, lines 31-33) [146] Although he has demonstrated frustration with social workers and Ms. L. on one occasion in the last three years, the court cansee clear improvement in his conduct.

He has worked very hard. Counsellors have seen a change. Mr. T.V. has developed insight intowhat triggers him. For example, Mr. Demerchant triggers him. He personally apologized to Mr. Demerchant at one point. He has also,through counselling, developed anger management techniques. He has developed insight into the kind of parent he was and he is

ashamed by his conduct. Mr. T.V. recognizes, as does the court, that his conduct is not the subject of a quick fix. He is on the right path – a path I am satisfied he intends to continue upon. [ 147 ] Considering all of the factors outlined in

section 2 of the Act in the context of this case, I cannot conclude that a continuing custody order is in the best interests of T.G.J. and T.R.J. Both parents have made incredible strides in addressing the underlying issues that led them to cause harm to their children in the past. I cannot conclude, on a balance of probabilities, that “the likelihood of harm they might suffer is such that there is little prospect it would be in their best interest to be returned to the parent”, to Ms. G.L.J.

I find it to be in the children’s best interests to be returned to the care of their mother. [ 148 ] Considering that the parents’ personal progress is ongoing, I find the children’s best interests are served by a return to Ms. G.L.J. under supervision for six months, pursuant to section 41(1)(

a) of the Act . Submissions from counsel will be required with respect to the terms of supervision, but I will make the following general remarks. [ 149 ] T.G.J. has many special needs that require attention and care. Ms. G.L.J. has demonstrated in the past that she is able to meet her children’s medical and educational needs, but T.G.J.’s needs have increased since he was last in her care. Since Ms. G.L.J.’s own health and stability has improved, I find that she does possess the skills and the desire necessary to assist T.G.J., but may require support services.

As she was not included in T.G.J.’s medical and psychiatric treatment while he was in care, Ms. G.L.J. will have to work closely with Mrs. L. and social workers to learn about T.G.J.’s treatment, care a

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